April 17, 2006

Does a private, unaided school seeking affiliation to CBSE require a no-objection certificate from the state government of the state in which the private unaided school is situated? The Delhi High Court has ruled that a no-objection certificate from the state government is a must and that decision is currently on appeal in the Supreme Court. If the Supreme Court upholds it, state governments will have a means to control the growth of private, unaided CBSE schools in their respective states, which would not be good at all. Things like this could happen in any state.

Here's the background to the case currently before the Supreme Court. There was a Delhi High Court ruling on September 08, 2005, in a case involving a private, unaided school (run by Tushar Welfare Society), seeking affiliation to the CBSE, which had applied to the Uttar Pradesh State Government for a no-objection certificate, to which the state government never responded. The CBSE had declined affiliation to the school on the grounds that it had not submitted the no-objection certificate from the state government, which it claimed was a requirement according to the bye-laws of the CBSE. The school obviously couldn't submit the no-objection certificate because the state government was dragging its feet for some reason. The school filed a writ petition in the Delhi High Court arguing that the CBSE's constitution stipulated that a no-objection certificate was required only for state-funded schools and the bye-laws could not extend that to private, unaided schools, and over-ride the CBSE's constitution. Justice Vikramajit Sen of the Delhi High Court agreed and ruled in favour of the private, unaided school and asked the CBSE to recognise the school even without the no-objection certificate, if it satisfied all other conditions.

Justice Vikramajit Sen also made a few other interesting observations in his ruling (of September 08, 2005), which are excerpted below (emphasis is mine). These observations were criticised by two other judges of the Delhi High Court when this matter went on appeal (see below).

7. The Constitution of the CBSE requires the concurrence of the State Government concerned if in those cases where an Institution receiving 'regular maintenance or grant-in-aid from a State' applies for affiliation to the CBSE. There is sufficient reason for this stipulation since the State which is disbursing grant-in-aid to an Institution must retain the power to decide inter alia whether such Institutions should prepare the students for appearing for examinations conducted by the State itself or jointly by the State Education Boards as well as Central Boards such as the CBSE. Equally, Institutions which do not take aid from the State must have the freedom to choose whether they will prepare its students to appear in a Central or State Board examinations. If Central Boards are increasingly preferred over State Board, one of the consequences would be that High Courts throughout the country would not be burdened with several Writ Petitions dealing with the grant of equivalence of educational qualifications. It is widely experienced that one State does not automatically grant recognition to educational qualifications obtained from another State and educational standard vary drastically. The most effective solution is to be found in students appearing in one of the Central Board examinations such as conducted by the CBSE. The difficulties and problems that are endemic in varying and deferring standards of State Education Boards would automatically be obviated.

8. In this analysis, therefore, the CBSE is adopting a retrogate practice and stand in insisting that State clearances should be taken even by School which are private and unaided. In the present times, control and interference of the State is consciously being minimised. It would be a progressive step if educational institutions maintain themselves and regulate their affairs without drawing upon the State funds for which there invariably are many other suppliants. Where the parents of students are unable to afford the fees of private institutions, State schools should be available, as they presently are. No further regulation of education is called for. It is this ethos which has been expressed in the Constitution of the CBSE itself. All institutions which fall in the category of being private and unaided need not therefore obtain the concurrence and prior approval of a State Government for applying for affiliation to the CBSE. This is also what the Constitution of the CBSE itself envisages. The Bye-laws of the CBSE which require the concurrence and/or approval of the State Government are clearly ultra vires, and are, therefore, struck down. Private institution which obtain affiliation to the CBSE or any other Central Board need not have any connection with the State in which it is located, apart from it following and adhering to local laws including labour legislation.

The CBSE then appealed the decision in the Delhi High Court, which was heard by the Chief Justice Markandeya Katju and Justice Madan Lokur who delivered a judgement on December 09, 2005 which set aside the judgement of September 08, 2005 of Justice Vikaramajit Sen and dismissed the original writ petition filed by Tushar Welfare Society. Some excerpts from the December 09, judgement make interesting reading.

15. In para 3 of the counter affidavit it is stated that the CBSE is discharging the function of conducting examinations, prescribing educational courses and generally maintaining standards of school education and advising the Government of India when called upon to do so on matters pertaining to school education. The CBSE frames its own rules and is governed by them and it has not been created under any statute. The CBSE is an autonomous and independent body, and no part of its expenses for running the organization is borne by the Government. It gets no aid, grant or subsidy from the Government and is not a State under Article 12 of the Constitution.

This is an interesting point, which I had not been aware of. According to the CBSE web site, "CBSE is a self-financing body which meets the recurring and non-recurring expenditure without any grant–in–aid either from the Central Govt. or from any other source. All the financial requirements of the Board are met from the annual examination charges, affiliation fee, PMT examination etc."

But the CBSE web site also states that the "The Education Secretary, MHRD, Govt. of India is the Controlling Authority of the Board. If the Board does not, within a reasonable time, take action, to the satisfaction of the Controlling Authority, the Controlling Authority may, after considering any explanation furnished or representation made by the Board, issue such directions, consistent with this Resolution, as he may think fit, and the Board shall comply with such directions." So its autonomy is questionable.

17. Thus it is evident that although the CBSE was initially created by the Central Government by the Resolution dated 01.07.1929, subsequently the appellant was registered as a society registered under the Societies Registration Act, 1860. Hence after its registration on 02.01.1935 it ceased to be a limb of the Central Government and became an independent and distinct legal entity.

24. In Para 06 of the impugned judgment the learned Single Judge has observed :- So far as regulations or bye-laws vis-a-vis a statute are concerned it is firmly entrenched in our jurisprudence that a delegate would exceed the jurisdiction and the powers vested in it if it were to go beyond the provisions of the Statute which has created it.

25.There is no disputing the proposition which the learned Single Judge has referred to in the above observation. However, with due respect to the learned Judge what has not been taken into consideration by him is that there was no statute which created the CBSE but only a Resolution of the Central Government dated 01.07.1929. That Resolution is only an executive order and not a statute. Subsequently, the CBSE became a registered society under the Societies Registration Act, 1860 on 02.01.1935. Hence from 02.01.1935, the society is no longer a limb of the Central Government, but is a distinct legal entity like a company registered under the Companies Act, 1956. Hence from 02.01.1935 the CBSE is no longer governed by the Resolution of the Central Government dated 01.07.1929. It is this vital point which has been over looked by the learned Single Judge and hence in our opinion, the said judgment cannot be sustained.

26. The learned Single Judge in para 8 of the impugned judgment has further observed:- In this analysis, therefore, the CBSE is adopting a retrograde practice and stand in insisting that State clearances should be taken even by Schools which are private and unaided. In the present times, control and interference of the State is consciously being minimized. It would be a progressive step if educational institutions maintain themselves and regulate their affairs without drawing upon the State funds for which there invariably are many other suppliants. Where the parents of students are unable to afford the fees of private institutions, State schools should be available, as they presently are. No further regulation of education is called for. It is this ethos which has been expressed in the Constitution of the CBSE itself. All institution which fall in the category of being private and unaided need not therefore, obtain the concurrence and prior approval of a State Government for applying for affiliation to the CBSE.

27.With profound respect to the learned Single Judge, we are of the view that using language like "retrograde practice" and remarks like "in the present times, control and interference of the State is consciously being minimized", are wholly irrelevant and misplaced. The court has to decide a case on legal principles and not on its own notions of what is "retrograde" and what is "progressive".

34. In our opinion, it is entirely for the Board to lay down the rules for grant of affiliation. This is a policy matter, and it is not proper for this Court to interfere in this.

45. The bye-law 3(i) which requires a No Objection Certificate from the State Government before grant of affiliation to a school is a policy decision of the CBSE, and it is well settled that in policy matters this court should not ordinarily interfere.

The Independent Schools Federation of India has appealed in the Supreme Court on April 13, 2006 against the Delhi High Court judgement of December 09, 2005. The Hindu (April 16, 2006) reported on this appeal.

The Supreme Court has issued notice to the Central Board of Secondary Education on a special leave petition challenging a Delhi High Court order, which said it was mandatory for a school seeking CBSE affiliation to obtain a no-objection certificate" (NoC) from the State Government concerned. A Bench consisting of Justices K.G. Balakrishanan and P.P. Naolekar issued the notice on Thursday.

The petitioner, Independent Schools Federation of India, contended that the by-law, making it mandatory for schools seeking affiliation to the CBSE to get the NoC, was violative of the government resolution by which the board was constituted. As per this resolution, affiliation could not be denied to an unaided school if it failed to secure the NoC.

The petitioner said it represented hundreds of unaided public schools seeking affiliation to the CBSE in the interest of the children of government servants with transferable jobs, who might otherwise have to contend with different syllabi and different courses being followed in various States.

The petitioner cited clause 9 of the July 1, 1929 Central Government resolution, which laid down that the State Government's concurrence was mandatory if a school was getting grant-in-aid from it. This clause was not applicable to unaided public schools, which were not getting any grant-in-aid from the State.

Note the mention of the terms "public schools" and "children of government servants with transferable jobs" in the report above. What is meant by "public schools"? How are they different from private, unaided schools on which the Delhi High Court had ruled earlier?

Comments

Does a private, unaided school seeking affiliation to CBSE require a no-objection certificate from the state government of the state in which the private unaided school is situated? The Delhi High Court has ruled that a no-objection certificate from the state government is a must and that decision is currently on appeal in the Supreme Court. If the Supreme Court upholds it, state governments will have a means to control the growth of private, unaided CBSE schools in their respective states, which would not be good at all. Things like this could happen in any state.

Here's the background to the case currently before the Supreme Court. There was a Delhi High Court ruling on September 08, 2005, in a case involving a private, unaided school (run by Tushar Welfare Society), seeking affiliation to the CBSE, which had applied to the Uttar Pradesh State Government for a no-objection certificate, to which the state government never responded. The CBSE had declined affiliation to the school on the grounds that it had not submitted the no-objection certificate from the state government, which it claimed was a requirement according to the bye-laws of the CBSE. The school obviously couldn't submit the no-objection certificate because the state government was dragging its feet for some reason. The school filed a writ petition in the Delhi High Court arguing that the CBSE's constitution stipulated that a no-objection certificate was required only for state-funded schools and the bye-laws could not extend that to private, unaided schools, and over-ride the CBSE's constitution. Justice Vikramajit Sen of the Delhi High Court agreed and ruled in favour of the private, unaided school and asked the CBSE to recognise the school even without the no-objection certificate, if it satisfied all other conditions.

Justice Vikramajit Sen also made a few other interesting observations in his ruling (of September 08, 2005), which are excerpted below (emphasis is mine). These observations were criticised by two other judges of the Delhi High Court when this matter went on appeal (see below).

7. The Constitution of the CBSE requires the concurrence of the State Government concerned if in those cases where an Institution receiving 'regular maintenance or grant-in-aid from a State' applies for affiliation to the CBSE. There is sufficient reason for this stipulation since the State which is disbursing grant-in-aid to an Institution must retain the power to decide inter alia whether such Institutions should prepare the students for appearing for examinations conducted by the State itself or jointly by the State Education Boards as well as Central Boards such as the CBSE. Equally, Institutions which do not take aid from the State must have the freedom to choose whether they will prepare its students to appear in a Central or State Board examinations. If Central Boards are increasingly preferred over State Board, one of the consequences would be that High Courts throughout the country would not be burdened with several Writ Petitions dealing with the grant of equivalence of educational qualifications. It is widely experienced that one State does not automatically grant recognition to educational qualifications obtained from another State and educational standard vary drastically. The most effective solution is to be found in students appearing in one of the Central Board examinations such as conducted by the CBSE. The difficulties and problems that are endemic in varying and deferring standards of State Education Boards would automatically be obviated.

8. In this analysis, therefore, the CBSE is adopting a retrogate practice and stand in insisting that State clearances should be taken even by School which are private and unaided. In the present times, control and interference of the State is consciously being minimised. It would be a progressive step if educational institutions maintain themselves and regulate their affairs without drawing upon the State funds for which there invariably are many other suppliants. Where the parents of students are unable to afford the fees of private institutions, State schools should be available, as they presently are. No further regulation of education is called for. It is this ethos which has been expressed in the Constitution of the CBSE itself. All institutions which fall in the category of being private and unaided need not therefore obtain the concurrence and prior approval of a State Government for applying for affiliation to the CBSE. This is also what the Constitution of the CBSE itself envisages. The Bye-laws of the CBSE which require the concurrence and/or approval of the State Government are clearly ultra vires, and are, therefore, struck down. Private institution which obtain affiliation to the CBSE or any other Central Board need not have any connection with the State in which it is located, apart from it following and adhering to local laws including labour legislation.

The CBSE then appealed the decision in the Delhi High Court, which was heard by the Chief Justice Markandeya Katju and Justice Madan Lokur who delivered a judgement on December 09, 2005 which set aside the judgement of September 08, 2005 of Justice Vikaramajit Sen and dismissed the original writ petition filed by Tushar Welfare Society. Some excerpts from the December 09, judgement make interesting reading.

15. In para 3 of the counter affidavit it is stated that the CBSE is discharging the function of conducting examinations, prescribing educational courses and generally maintaining standards of school education and advising the Government of India when called upon to do so on matters pertaining to school education. The CBSE frames its own rules and is governed by them and it has not been created under any statute. The CBSE is an autonomous and independent body, and no part of its expenses for running the organization is borne by the Government. It gets no aid, grant or subsidy from the Government and is not a State under Article 12 of the Constitution.

This is an interesting point, which I had not been aware of. According to the CBSE web site, "CBSE is a self-financing body which meets the recurring and non-recurring expenditure without any grant–in–aid either from the Central Govt. or from any other source. All the financial requirements of the Board are met from the annual examination charges, affiliation fee, PMT examination etc."

But the CBSE web site also states that the "The Education Secretary, MHRD, Govt. of India is the Controlling Authority of the Board. If the Board does not, within a reasonable time, take action, to the satisfaction of the Controlling Authority, the Controlling Authority may, after considering any explanation furnished or representation made by the Board, issue such directions, consistent with this Resolution, as he may think fit, and the Board shall comply with such directions." So its autonomy is questionable.

17. Thus it is evident that although the CBSE was initially created by the Central Government by the Resolution dated 01.07.1929, subsequently the appellant was registered as a society registered under the Societies Registration Act, 1860. Hence after its registration on 02.01.1935 it ceased to be a limb of the Central Government and became an independent and distinct legal entity.

24. In Para 06 of the impugned judgment the learned Single Judge has observed :- So far as regulations or bye-laws vis-a-vis a statute are concerned it is firmly entrenched in our jurisprudence that a delegate would exceed the jurisdiction and the powers vested in it if it were to go beyond the provisions of the Statute which has created it.

25.There is no disputing the proposition which the learned Single Judge has referred to in the above observation. However, with due respect to the learned Judge what has not been taken into consideration by him is that there was no statute which created the CBSE but only a Resolution of the Central Government dated 01.07.1929. That Resolution is only an executive order and not a statute. Subsequently, the CBSE became a registered society under the Societies Registration Act, 1860 on 02.01.1935. Hence from 02.01.1935, the society is no longer a limb of the Central Government, but is a distinct legal entity like a company registered under the Companies Act, 1956. Hence from 02.01.1935 the CBSE is no longer governed by the Resolution of the Central Government dated 01.07.1929. It is this vital point which has been over looked by the learned Single Judge and hence in our opinion, the said judgment cannot be sustained.

26. The learned Single Judge in para 8 of the impugned judgment has further observed:- In this analysis, therefore, the CBSE is adopting a retrograde practice and stand in insisting that State clearances should be taken even by Schools which are private and unaided. In the present times, control and interference of the State is consciously being minimized. It would be a progressive step if educational institutions maintain themselves and regulate their affairs without drawing upon the State funds for which there invariably are many other suppliants. Where the parents of students are unable to afford the fees of private institutions, State schools should be available, as they presently are. No further regulation of education is called for. It is this ethos which has been expressed in the Constitution of the CBSE itself. All institution which fall in the category of being private and unaided need not therefore, obtain the concurrence and prior approval of a State Government for applying for affiliation to the CBSE.

27.With profound respect to the learned Single Judge, we are of the view that using language like "retrograde practice" and remarks like "in the present times, control and interference of the State is consciously being minimized", are wholly irrelevant and misplaced. The court has to decide a case on legal principles and not on its own notions of what is "retrograde" and what is "progressive".

34. In our opinion, it is entirely for the Board to lay down the rules for grant of affiliation. This is a policy matter, and it is not proper for this Court to interfere in this.

45. The bye-law 3(i) which requires a No Objection Certificate from the State Government before grant of affiliation to a school is a policy decision of the CBSE, and it is well settled that in policy matters this court should not ordinarily interfere.

The Independent Schools Federation of India has appealed in the Supreme Court on April 13, 2006 against the Delhi High Court judgement of December 09, 2005. The Hindu (April 16, 2006) reported on this appeal.

The Supreme Court has issued notice to the Central Board of Secondary Education on a special leave petition challenging a Delhi High Court order, which said it was mandatory for a school seeking CBSE affiliation to obtain a no-objection certificate" (NoC) from the State Government concerned. A Bench consisting of Justices K.G. Balakrishanan and P.P. Naolekar issued the notice on Thursday.

The petitioner, Independent Schools Federation of India, contended that the by-law, making it mandatory for schools seeking affiliation to the CBSE to get the NoC, was violative of the government resolution by which the board was constituted. As per this resolution, affiliation could not be denied to an unaided school if it failed to secure the NoC.

The petitioner said it represented hundreds of unaided public schools seeking affiliation to the CBSE in the interest of the children of government servants with transferable jobs, who might otherwise have to contend with different syllabi and different courses being followed in various States.

The petitioner cited clause 9 of the July 1, 1929 Central Government resolution, which laid down that the State Government's concurrence was mandatory if a school was getting grant-in-aid from it. This clause was not applicable to unaided public schools, which were not getting any grant-in-aid from the State.

Note the mention of the terms "public schools" and "children of government servants with transferable jobs" in the report above. What is meant by "public schools"? How are they different from private, unaided schools on which the Delhi High Court had ruled earlier?